SOFTWARE LICENSE AGREEMENT
This Software License Agreement (this “Agreement”), effective as of [DATE] (the “Effective Date”), is by and between Accelerist Inc. (“Licensor”) and [CLIENT] (“Licensee”). Licensor and Licensee may be referred to herein collectively as the “Parties” or individually as a “Party.” In consideration of the mutual covenants, terms, and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
Definitions. As used in this Agreement, “Software” means the software product(s) described on Exhibit A hereto. “Documentation” means Licensor’s user manuals/handbooks/guides relating to the Software provided by Licensor to Licensee, either electronically or in hard copy form.
License Grant. Subject to and conditioned on Licensee’s payment of the Annual Fees and compliance with all other terms of this Agreement, Licensor hereby grants Licensee a non-exclusive, non-sublicensable, and non-transferable license during the Term to: (i) use the Software solely for Licensee’s internal business purposes; and (ii) use and make a reasonable number of copies of the Documentation solely in connection with Licensee’s use of the Software pursuant to this Agreement.
Use Restrictions. Licensee shall not use the Software or Documentation for any purposes beyond the scope of the license granted in this Agreement. Without limiting the foregoing and except as otherwise expressly set forth in this Agreement, Licensee shall not at any time, directly or indirectly: (i) copy, modify, or create derivative works of the Software or the Documentation, in whole or in part; (ii) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Software or the Documentation; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source code of the Software, in whole or in part; (iv) remove any proprietary notices from the Software or the Documentation; or (v) use the Software in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law.
Reservation of Rights. Licensor reserves all rights not expressly granted to Licensee in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Licensee or any third party any intellectual property rights or other right, title, or interest in or to the Software.
Licensee Responsibilities. Licensee is responsible and liable for all uses of the Software and Documentation resulting from access provided by Licensee, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. Without limiting the generality of the foregoing, Licensee is responsible for all acts and omissions of users of the Software who gain access to the Software through Licensee (“Licensee Users”). Any act or omission by such Licensee Users that would constitute a breach of this Agreement if taken by Licensee will be deemed a breach of this Agreement by Licensee. Licensee shall take reasonable efforts to make all Licensee Users aware of this Agreement’s provisions as applicable to such Licensee Users’ use of the Software, and shall cause all Licensee Users to comply with such provisions.
Support. During the Term, Licensor shall provide Licensee with an account manager who will instruct Licensee in the use of the Software and assist with any troubleshooting issues Licensee may encounter.
Annual Fees. On the Effective Date, and each year on the anniversary of the Effective Date (until this Agreement is terminated), Licensee shall pay Licensor the annual fee (“Annual Fee”) set forth on Exhibit A, without offset or deduction. If Licensee fails to pay any Annual Fee when due, in addition to all other remedies that may be available, Licensor may prohibit access to the Software until all due amounts have been paid, without incurring any liability to Licensee or any other person by reason thereof. In addition, Licensee must pay 18% annual interest from the start of Licensee’s default.
Confidential Information. From time to time during the Term, either Party may disclose or make available to the other Party information about its business affairs, products, confidential intellectual property, trade secrets, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media, and whether or not marked, designated or otherwise identified as “confidential” (collectively, “Confidential Information”). Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain; (b) known to the receiving Party at the time of disclosure; (c) rightfully obtained by the receiving Party on a non-confidential basis from a third party; or (d) independently developed by the receiving Party. The receiving Party shall not disclose the disclosing Party’s Confidential Information to any person or entity, except to the receiving Party’s employees who have a need to know the Confidential Information for the receiving Party to exercise its rights or perform its obligations hereunder. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required (i) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order shall first have given written notice to the other Party and made a reasonable effort to obtain a protective order; or (ii) to establish a Party’s rights under this Agreement, including to make required court filings. On the termination of this Agreement, the receiving Party shall promptly return to the disclosing Party all copies, whether in written, electronic, or other form or media, of the disclosing Party’s Confidential Information, or destroy all such copies and certify in writing to the disclosing Party that such Confidential Information has been destroyed. Each Party’s obligations of non-disclosure with regard to Confidential Information are effective as of the Effective Date and will expire three years from the date first disclosed to the receiving Party; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law.
Intellectual Property Ownership. Licensee acknowledges that, as between Licensee and Licensor, Licensor owns all right, title, and interest, including all intellectual property rights, in and to the Software and Documentation.
Warranty Disclaimer. THE SOFTWARE AND DOCUMENTATION ARE PROVIDED “AS IS” AND LICENSOR HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. LICENSOR SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. LICENSOR MAKES NO WARRANTY OF ANY KIND THAT THE SOFTWARE AND DOCUMENTATION, OR ANY RESULTS OF THE USE THEREOF, WILL MEET LICENSEE’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE. IF LICENSEE IS DISSATISFIED WITH THE SOFTWARE FOR ANY REASON, LICENSEE’S SOLE REMEDY SHALL BE TO TERMINATE THIS AGREEMENT UPON 60 DAYS’ WRITTEN NOTICE TO LICENSOR PURSUANT TO SECTION 11.
[Privacy of Personal Information. Licensor respects the privacy of individuals and is committed to protecting it. To that end, this Section 9 shall govern the collection, use, and disclosure of personal information and shall control in the event of any inconsistency with any other section of this Agreement.
Information Collected. In connection with Licensee’s use of the Software, Licensor may collect email addresses or social handles of individuals from Licensee and other sources, including information that does not identify people specifically, but does identify peoples’ habits, locations, purchasing decisions, demographics and internet navigational history. Licensor may also collects this information from public sources.
Use of Information. Licensor uses the collected personal information about individuals in order to create profiles and statistical data to identify trends and other helpful, general information that assists corporate sponsors in identifying appropriate charitable-organization partners (and vice versa). Licensor may disclose aggregated, statistical information about individuals, and other information that does not identify any individual specifically, without restriction – including to provide Licensor and other licensors of the Software with the reports, analyses and other functionality included with the Software. Licensor may aggregate information and analyses about groups of individuals to (a) its subsidiaries and affiliates under its control, for the purpose of making the Software available to Licensor and others; and (b) its contractors, service providers, and other third parties Licensor uses to support its business and who agree not to disclose such information in violation hereof. Except as otherwise described in this Section 9, Licensor and its affiliates will not disclose any personal information that specifically identifies any individual to any third party.
Acknowledgement of Collection and Use. Licensee understands and acknowledges that, in connection with Licensee’s use of the Software, Licensor may collect and analyze individuals’ email and social information from Licensee and other sources as discussed above. Licensee further understands that personal information about individuals that is provided to Licensor by Licensee may be used in providing the Software and other services to Licensor’s other customers/licensees, subject to the terms of this Section 9. In some instances, the analysis of personal information described herein is performed utilizing a third-party proprietary database licensed by Licensor. Licensee represents that the collection and use of individuals’ personal information as disclosed herein does not violate any agreement between Licensee and the individuals whose information is provided.][Intentionally Deleted]
Limitations of Liability. IN NO EVENT WILL LICENSOR BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (e) COST OF REPLACEMENT SERVICES, IN EACH CASE REGARDLESS OF WHETHER LICENSOR WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL LICENSOR’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, EXCEED THE LESSER OF $100,000 AND THE AMOUNT OF THE FEE SET FORTH ON EXHIBIT A HERETO.
Term and Termination.
Term. The term of this Agreement begins on the Effective Date and will continue until terminated by either Party pursuant to this Section 11 (the “Term”).
Termination. Either Party may terminate this Agreement, for any reason or no reason, upon 60 days’ written notice to the other Party. In addition, either Party may terminate this Agreement, effective immediately upon written notice to the other Party, if the other Party materially breaches this Agreement, and such breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured 10 days after the non-breaching Party provides the breaching Party with written notice of such breach.
Effect of Termination. Upon the termination of this Agreement, the license granted hereunder will also terminate, and, without limiting Licensee’s obligations under Section 6, Licensee shall cease using and delete, destroy, or return all copies of the Software and Documentation and certify in writing to the Licensor that the Software and Documentation has been deleted or destroyed. Upon the proper termination of this Agreement by either Party pursuant to this Section 11, and provided Licensee is not at that time in breach of this Agreement, Licensee shall receive a partial refund of its most recently-paid Annual Fee (prorated based on the remaining portion of the contract year in question).
Survival. This Section 11(d), Sections 6 through 10, and Sections 12 and 13 (and no other Sections) shall survive any termination this Agreement.
Equitable Relief. Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under Section 6 or, in the case of Licensee, Section 2(b), would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other Party will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.
Miscellaneous. This Agreement and all matters arising out of or relating to this Agreement are governed by, and construed in accordance with, the laws of Texas, without giving effect to any conflict of laws provisions thereof. Each Party shall institute any legal suit, action, or proceeding arising out of or relating to this Agreement in the federal or state courts located in Travis County, Texas. Each Party hereby irrevocably and unconditionally consents and submits to the exclusive jurisdiction of the aforementioned courts. If Licensee defaults under the terms of this Agreement, then Licensee must pay all of Licensor’s attorneys’ fees and costs associated with enforcing this Agreement, plus 18% annual interest from the start of Licensee’s default. This Agreement contains the entire understanding of the Parties with respect to the subject matter hereof and supersedes all prior and contemporaneous written or oral understandings, agreements, representations, and warranties with respect to such subject matter. Neither Party is relying upon any representation not contained herein. The Parties may not amend this Agreement except by written instrument signed by both Parties. No waiver of any right, remedy, power, or privilege under this Agreement is effective unless contained in a writing signed by the Party charged with such waiver. Neither Party may directly or indirectly assign, transfer, or delegate any of or all of its rights or obligations under this Agreement without the prior written consent of the other Party hereto; provided however that Licensor may freely assign its rights and obligations hereunder, without Licensee’s consent, to any person or entity that acquires all or substantially all of Licensor’s assets. Any purported assignment or delegation in violation of this Section shall be null and void. This Agreement is binding upon and inures to the benefit of the Parties and their respective successors and permitted assigns. There are no third-party beneficiaries under this Agreement. This Agreement may be executed in counterparts.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the Effective Date.